This article was first published by Solicitors Journal in March 2012, and is reproduced by kind permission. Click here to view the article.
Essex County Council did not owe a ‘non-delegable’ duty of care to a girl who almost drowned during a school swimming lesson run by a private contractor.
The Court of Appeal decided by a three to two majority that it was not prepared to impose on the council, as owner of the school, a duty of care to the girl, who suffered severe brain damage following a visit to a local leisure centre.
Giving judgment in Woodland v Essex County Council  EWCA Civ 239, Lord Justice Tomlinson said the only purpose of the appeal, brought by the girl’s father, was to “ensure the liability is brought home to a defendant with sufficient resources to meet the possible award”.
He said the court was being asked to extend liability “beyond that hitherto recognised by the common law in England, or, I believe, in Australia”, and had been given “no good reason why it is necessary to move the law on from where currently it stands”.
He said a “development of the law along the lines sought” must be a matter for the Supreme Court.
Tomlinson LJ said that to extend the duty of care in the way sought would make an educational authority liable if a child was bitten by an animal during a school trip.
“Provided that undertaking a trip to the zoo in question did not itself amount to negligence because, for example, of the known incompetence with which the zoo is run, or, possibly, its lack of adequate liability insurance, I do not consider that we have been given any justification for such an outcome.
“Furthermore, the imposition of such liability would be likely, I think, to have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils.”
Lord Justice Kitchin agreed that the appeal should be dismissed.
“True it is that the plaintiff suffered her injuries during the course of the school day and while taking a swimming lesson which, I am prepared to assume, formed part of the national curriculum,” Kitchin LJ said.
“But, on the pleaded case, she did so in an environment which was not under the control of the school staff and while engaged in an activity which was not being conducted or overseen by the school staff.
“The school had no swimming pool and it is not suggested that its staff were trained as life guards or had the necessary expertise properly to supervise children taking swimming lessons.”
Kitchin LJ said the education authority “never undertook that it would itself teach its pupils to swim; nor did it undertake the care, supervision or control of the pupils while they were taking swimming lessons.
“To the contrary, I think the authority might reasonably have been criticised had it not engaged a suitable and competent independent organisation with appropriate skills and access to appropriate facilities to conduct the swimming lessons for which the authority was evidently not itself equipped.”
However, Laws LJ ruled that the appeal should be allowed. He said a school or hospital owed a “non-delegable duty” to see that care was taken for the safety of a child or patient who was “generally in its care” and “receiving a service which is part of the institution’s mainstream function”.
Steven Ford QC, from 7 Bedford Row, acted for Essex County Council.
“This ruling will come as a relief to local authorities and public service providers up and down the country,” he said.
“The outsourcing of services is very much in vogue as local authorities and service providers are subject to increasing budget restraints. Schools outsource services such as transport, school dinners, sports and music lessons; hospitals send patients to private providers for surgery; social services departments place children in private care homes.
“While the local authority or provider very much retain a duty to ensure an independent contractor is competent, they will not be held liable for the negligent actions of others outside of their control.”
Ford added that the ruling would probably not apply to an incident occurring on the education authority’s own premises.
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